Special Permit Application Appeal In Massachusetts
"A special permit concerns a use thought under the zoning code to be potentially acceptable in a zoning district, but only after and subject to review and permission of a permit granting authority, to the end that the use applied for be compatible with the allowed uses in the area in which it is to be planted." Duteau v. Zoning Board of Appeals of Webster, 47 Mass. App. Ct. 664, 667, 715 N.E.2d 470 (1999).
"Special permits govern that class of uses that lies between those that are prohibited and those that, because they comply with the zoning code in all detail, are allowed as of right." Duteau v. Zoning Board of Appeals of Webster, 47 Mass. App. Ct. at 667.
On appeal of a permit granting authority's decision on an application for a special permit, the matter is heard de novo; the reviewing court makes independent findings of fact and "determines the legal validity of the decision of the board upon the facts found by the court, or if the decision of the board is invalid in whole or in part, the court determines what decision the law requires upon the facts found." Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558-559, 120 N.E.2d 916 (1954), quoting Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676, 679, 116 N.E.2d 570 (1953).
the board's decision carries no evidentiary weight on appeal. Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295, 285 N.E.2d 436 (1972); Guiragossian v. Board of Appeals of Watertown, 21 Mass. App. Ct. 111, 114, 485 N.E.2d 686 (1985).
However, if supported by the facts found by the judge on appeal, the board's decision may be disturbed only if it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary. ACW Realty Management, Inc. v. Planning Board of Westfield, 40 Mass. App. Ct. 242, 246, 662 N.E.2d 1051 (1996); Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483, 486, 395 N.E.2d 880 (1979). "The 'board may deny a permit even if the facts showed that a permit could lawfully be granted.'" ACW Realty Management, 40 Mass. App. Ct. at 246, quoting Zaltman v. Board of Appeals of Stoneham, 357 Mass. 482, 484, 258 N.E.2d 565 (1970).
"If any reason on which the board can fairly be said to have relied has a basis in the trial judge's findings and is within the standards of the zoning by-law and the zoning act, the board's action must be sustained regardless of other reasons which the board may have advanced." S. Volpe & Co. v. Board of Appeals of Waltham, 4 Mass. App. Ct. 357, 360, 348 N.E.2d 807 (1976).